Digital Assets and Your Estate Plan

Our legal team are up-to-date with legal developments and understand their relevance to you.

OUR LEGAL NEWS

DIGITAL ASSETS AND YOUR ESTATE PLAN

For years, legal and financial professionals have stressed the importance of proper estate planning. We’re told that creating a will and taking all of the associated steps is the best way to ensure that our assets are distributed according to our wishes and our loved ones are fully provided for after we’re gone.

Today, we’re also learning about the importance of including provisions for the management and distribution of digital assets in our estate plans. But just what are digital assets, and why is this so significant?

Defined in its broadest and simplest terms, a digital asset is any information or material belonging to you, such as email, photographs, documents and even music that is kept on your computer, laptop, mobile phone, tablet or similar device. Your social media accounts and online storage accounts can also be classified as digital assets. But that’s not all. Any websites that you have for business or personal use, any domain names you may own and any related ‘intellectual property’ can also be defined as digital assets.

Without specific provisions pertaining to the management and distribution of these assets in your estate plan, they may be left in a state of uncertainty. And this may result in social media and privacy concerns, depreciation of the estate and an inability to transfer the assets. It’s important to consider implementing the following steps:

Naming someone such as the executor or another person to handle your digital assets in the context of estate planning.

Authorising them to access and manage your digital assets.

Preparing a separate document along with your will and/or enduring power of attorney for the person you selected to manage your digital assets that includes all of the relevant information necessary to access them and clearly indicates what you want to happen to each asset.

In addition to providing your passwords for the person given the task of managing your digital assets, you may also want to provide specific instructions regarding your personal social media accounts. If you have a Facebook page, for instance, you can give them complete access to your account, or you can change your settings to restrict their access. By doing the latter, you can allow them to memorialise your profile or create a ‘digital shrine’. You can also have them contact Facebook about your death and request that your account is deleted.

On the other hand, if you are on social media platforms affiliated with Google, such as Gmail and YouTube, choosing the ‘Inactive Account Manager’ setting triggers an alert after a specified period of inactivity.

Because different social media platforms may have different policies and procedures for accessing accounts after the account holder has died, it is important that you familiarise yourself with them and ensure that the person who is managing your digital assets understands them, too.

If you have digital assets related to your business, it is important to consult with your lawyer or accountant about how they should be handled. He or she will likely recommend that you include provisions for the transfer to a surviving business partner or similar person of access to the social media accounts, websites and online data storage. Doing so will ensure that your business continues to run smoothly after you are gone, and is crucial if your digital assets are valuable, essential to business operations or produce revenue.

As this is an emerging issue in law, there is little by way of case law, legislation or other legal precedent to serve as guidance for lawyers and other professionals. So while you can – and should – let your lawyer know that you would like to include provisions pertaining to your digital assets in your will, you need to take the other steps that are set out above, otherwise your wishes may be invalidated by the existing terms and conditions associated with each digital asset.

If you have questions or concerns about this issue, or you would like to create a digital asset plan, phone us to schedule an appointment with a member of our Wills and Estates team today.

Itis important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.